1985 PLP 1915 (CLC)

During the hearing of the appeal, in pursuance of the order, dated 8-3-1982, passed in Writ Petition No. 8847 of 1980, the petitioner moved an application for grant of permission to lead additional evidence. According to the petitioner's learned counsel, this application fell for consideration before the learned Additional District Judge, on 12-5-1983 on which date, the arguments were heard thereon and not on the main appeal and the case adjourned to 15-5-1983 for orders on the application. However, on 21-5-1983, the learned Additional District Judge announed the orders in the appeal and dismissed the same. The petitioner then moved an application for recall of the order, dated 21-5-1983 on the ground that the appeal was decided without hearing arguments. This application was disallowed by orders, dated 29-11-1984, which is under challenge in this writ petition.

2. The respondents Nos. 3 and 4, are absent despite service. They are, therefore, proceeded against ex parte.

3. The learned counsel for the petitioner has been heard and the record perused. It is discernible from the appellate Court's file, that on 12-5-1983, only the arguments on the application for additional evidence were heard and the case adjourned to 15-5-1.983 for orders. However, on the said date, as disclosed by the order-sheet, the learned Additional District & Sessions Judge was busy in hearing a Sessions case and the announcement of the orders was postponed to 21-5-1983. On this date, the orders dismissing the appeal were announced. The petitioner's contention that the appeal has been disposed of without hearing his arguments, appears to be well-grounded and finds support from the entries in the order-sheet. Though in the order,, dated 21-5-1983, the learned Additional District Judge, has observed that the arguments on the appeal were also heard. But, this observation is not in consonance with the proceedings recorded in the order-sheet. Seemingly, no opportunity to argue the appeal was given to the peti tioner. The disposal of the appeal without extending such an opportunity to the appellant, is illegal. Of course, the learned Additional District Judge, who heard the application for recalling of the order, dated 29-11-1984 was not unjustified in refusing the same for the reasons that no power to review the orders passed by his predecessor-in-office, vested in him. However, as the order, dated 21-5-1983, is liable to be removed, the subsequent order passed on the basis thereof, would also have to be set aside.

4. For the foregoing reasons, this writ petition is accepted, the impugned order set aside and the case is sent back to the learned Court below with the direction that the petitioner's appeal shall be treated as pending and disposed of afresh in accordance with law.

5. As the order, dated 21-5-1983, is composite in nature and has been set aside, the petitioner's application for additional evidence shall have to be decided afresh and I order accordingly. As the respondents have not appeared, there shall be no order as to costs. M.A.K. Cases remanded.